Opinion
January 14, 1965
Appeal from the Niagara Special Term.
Present — Williams, P.J., Goldman, Henry, Noonan and Del Vecchio, JJ.
Order insofar as appealed from unanimously reversed, without costs of this appeal to either party, without prejudice to reapply upon appropriate and adequate papers. Memorandum: CPLR 3211 (subd. [e]) provides that on a motion to dismiss for insufficiency if the opposing party desires leave to plead over in the event the motion is granted "he shall so state in his opposing papers and in them set forth evidence that could properly be considered on a motion for summary judgment in support of a new pleading; leave to plead again shall not be granted unless the court is satisfied that the opposing party has good ground to support his cause of action or defense." The papers submitted for leave to amend the complaint are inadequate in that there is no affidavit by a person having personal knowledge of the facts. (See Cohen v. Pannia, 7 A.D.2d 886.)